SENATE:

McCarthy vote on tap today as filibuster showdown continues

Nick Juliano and Jason Plautz, E&E reporters

E&E Daily: Tuesday, July 16, 2013

The Senate today is scheduled to vote to confirm Gina McCarthy to lead U.S. EPA, but a broader showdown over whether to limit the filibuster still threatens to throw the upper chamber into chaos as no agreement emerged from a closed-door meeting that went well into the night.

Senators huddled in the Old Senate Chamber for about three-and-a-half hours last night in a rare bipartisan caucus meeting that served as a last-ditch effort to stave off Majority Leader Harry Reid's threatened rules change, which would eliminate the minority party's ability to filibuster presidential appointments.

No deal was reached at the meeting, which was closed to the public, and senators offered varying predictions on whether a deal could be reached to avoid the rules change -- dubbed the "nuclear option" by some critics -- before senators begin voting on nominees this morning.

Reid (D-Nev.) emerged from the meeting to deliver a brusque statement declaring that senators had a "good conversation" but that the votes remained on schedule for this morning. He said earlier in the day that a Republican filibuster of any nominees today would prompt him to trigger the rules change.

Sen. Tom Udall (D-N.M.), a major proponent of filibuster reform, said on leaving the meeting that he thought the Senate was "heading to votes tomorrow on cloture" and that the easiest solution he saw was for Democrats to just gather enough Republican votes for all the nominees to clear cloture. Even those who had been engaged in dealmaking, he said, were unable to sway their colleagues.

"There were just proposals. Nobody was grabbing on," Udall said. "There were no solutions."

Sen. Tom Harkin (D-Iowa) said that the best course of action would be "for all of us to lock hands and put all of this behind us" with a widespread agreement to change the rules.

"But now it sounds like there will be another deal made ... another papering over," Harkin said, dismayed. "Every time we paper over, it gets worse."

Sen. Dick Durbin (D-Ill.), the majority whip, said Reid and Minority Leader Mitch McConnell (R-Ky.) would continue to meet through the night. Democrats' main complaint -- and their impetus to back a rules change -- revolves around delays in confirming a head of the Consumer Finance Protection Bureau and members of the National Labor Relations Board.

McCarthy, Labor Secretary nominee Thomas Perez and others have effectively been caught in the crossfire, leaving open the question of whether they would get confirmed today absent a larger deal to avoid a rules change. Some Republicans have signaled a willingness to vote for cloture on those nominees, allowing them to overcome a filibuster to win confirmation. But others suggested yesterday that the fallout from triggering the nuclear option could lead Republicans to use every tool at their disposal to grind the Senate to a halt, potentially delaying the nominees' confirmation indefinitely.

"I don't want to predict what's going to happen tomorrow," Durbin said when asked about McCarthy and Perez.

After the meeting, Sen. Lamar Alexander (R-Tenn.) said he was unsure how today would play out, but he noted that the nominees had enough support to break a filibuster. Sen. John Thune (R-S.D.) said they would "probably" be confirmed regardless of what happens with the rules showdown. Earlier in the day, Sen. John McCain (R-Ariz.) said changing the rules could lead to delays in the other nomination votes.

Seven votes are planned this morning to invoke cloture on McCarthy and a half-dozen other nominees. The would-be EPA chief appears to have the votes to overcome a filibuster, but Republicans have been more resistant to other nominees who are being considered.

The voting is scheduled to start at 11 a.m. with the nomination of Richard Cordray, perhaps the most controversial of the stalled nominees, to be director of the Consumer Financial Protection Bureau, and will include nominees to the National Labor Relations Board who are drawing resistance because they initially received recess appointments. There will also be a vote on Perez's nomination to head the Labor Department.

Reid yesterday morning reiterated his threat to implement a change in the Senate rules -- which could be enacted with the support of 51 Democrats -- if Republicans prevent any of the nominees up today from receiving the 60 votes necessary to overcome a filibuster. The rules change would eliminate a minority party's ability to filibuster any executive branch nominee, while maintaining the filibuster as an avenue to block judicial nominations and traditional legislation.

Throughout the day yesterday, Reid's office was a hub of activity as the cloture vote deadline grew nearer. The majority leader met with his GOP counterpart, McConnell; McCain, who was trying to broker a deal to avert the rules change; White House aides; and a group of political scientists, among others.

McCain said changing the rules would lead to a Republican backlash that would create more of the gridlock and delay that Democrats say they want to avoid. He recalled meeting with the Senate parliamentarian at least 10 times when there was an effort to eliminate the filibuster at the start of this Congress.

"And you know what I found out? You can gum up this place no matter what ... almost interminably," McCain told reporters yesterday afternoon as he shuttled between Reid's and McConnell's offices. "And that's what I'm afraid may happen here."

As for McCarthy's nomination, McCain said further delays could be in store if Reid follows through with the rules change, given the amount of obstruction Republicans have planned.

"If you change the rules, she needs 51 [votes] -- that's what it's going to be. But it may be a period of time before she would actually get a vote on the floor," he said.

Poisoning the well?

Alexander said Republicans would give up on trying to work with Democrats and focus all their attention on retaking control of the chamber and further eroding the filibuster in order to enact all manner of their priorities, from repealing the health care reform law to approving the Keystone XL oil pipeline to reopening Yucca Mountain in Nevada as a nuclear waste repository.

But he again declined to get specific when asked whether he would walk away from the bipartisan nuclear waste bill he is co-sponsoring.

"I'm not going to say that now, but this changes the nature of everything," Alexander told E&E Daily on his way to the meeting.

Not all Republicans are willing to abandon their efforts. Sen. Rob Portman (R-Ohio), who has been working to broker a deal on Cordray's nomination, is sponsoring a bipartisan energy efficiency bill that was seen as a likely candidate to pass the Senate this month but that now finds itself in doubt pending a resolution on the filibuster. Portman said that he would continue to support the bill, which he is co-sponsoring with Sen. Jeanne Shaheen (D-N.H.), but acknowledged that it would be not be easy if the rules are changed.

"I will continue to push for it, but it will be more difficult," Portman said yesterday, explaining that he was not of the mind that Republicans should walk away from all legislation if the rules are changed. "However, what I think isn't necessarily important. This place operates by unanimous consent."

Congressional expert Thomas Mann, a senior fellow at the Brookings Institution, however, said that the nuclear option wouldn't do much to change an already familiar dynamic in Congress.

"The well is already poisoned," Mann said. "Prospects for bipartisan cooperation, apart from immigration, are virtually nonexistent."

Democrats said they would take their case to voters if Republicans retaliate with further obstruction.

"I think if the response is going to be just outright obstruction, that will backfire," Udall said.

McCarthy's future

With McCarthy's bipartisan credentials -- she worked under Republicans in Connecticut and Massachusetts -- and her reputation for working fairly with both sides, most observers had predicted that she would get through the Senate with some measure of Republican support.

Even McConnell has conceded on multiple occasions that McCarthy -- along with several other nominees, including Perez -- will likely clear the cloture vote.

But with her nomination coming amid the turmoil of a potential rules change, some supporters say those credentials are going unnoticed.

"It's clear that if it weren't for these procedural barriers, she'd get through. This is one of those cases where the politics of the Senate is just completely out of step and obscured from the politics of the country," said David Foster, executive director of the BlueGreen Alliance, a coalition of labor and environmental groups. "There's a lot of support for her, but this is an oddity of ideology, and things are being held up because of a few right-leaning politicians."

Speaking to reporters, former EPA Administrator Christine Todd Whitman chastised legislators for holding up a nomination over disputes about EPA, rather than about McCarthy's qualifications. Calling her "uniquely qualified for the job," Whitman urged the Senate to clear the way for McCarthy to step in as permanent administrator.

"The agency just cannot function as effectively with an acting administrator, no matter how good he or she is, and in this case, they have a good one," said Whitman, who served from 2001 to 2003 under President George W. Bush.

"The work of the agency is important. It is important in protecting public health and the environment," she continued. "But also it's important in a nuts-and-bolts way for states, because there are requirements under the Clean Air Act and Clean Water Act that start clocks ticking, and you need an administrator that is able to function on all cylinders and have those meaningful conversations."

Even if McCarthy's nomination were overshadowed by the nuclear option debate, observers questioned whether that would color her relationship with Congress. Republicans were already going to be skeptical of the work EPA was doing, especially with plans to regulate emissions from power plants coming in the next two years.

Norman Ornstein, a resident scholar at the American Enterprise Institute, said that even if the Senate had to confirm her through changed rules, her job couldn't be harder.

"If you look at the Senate Environment Committee, the idea that [Oklahoma Republican Sen. James Inhofe] is going to grow more negative to her or more skeptical on the issue of climate change is laughable," he said. "In the end, it's going to be very tricky for her dealing with sequestration, with House Republicans joining with Senate Republicans to try to disrupt the administration and her agency."

Similarly, Foster said that the dispute would not influence McCarthy's work with Congress and likely wouldn't factor into her legacy at all.

"We can fulminate all we want on a dispute that happens inside the Senate chamber that's opaque to most Americans," he said. "All most people will see is the EPA cleaning up the power industry and companies achieving cleaner, more cost-efficient ways of delivering power. People are going to say that McCarthy is a great regulator and was a great appointment."

'Who cares?'

While the Perez nomination has been less visible than McCarthy's, Republicans have continued to express concerns about his tenure as assistant attorney general for the Justice Department's Civil Rights Division. They have called him a partisan, dishonest, left-wing ideologue.

If confirmed, Perez would lead the administration's worker safety efforts, which have significant impacts on energy production. Yesterday Harkin, the Health, Education, Labor and Pensions Committee chairman, took to the Senate floor to blast what he saw as unfair GOP obstruction.

"I have looked carefully into Mr. Perez's background and record of service," said Harkin. "I can assure my colleagues that Tom Perez has the strongest possible record of professional integrity and that any allegations to the contrary are unfounded."

Asked later whether Perez had enough votes to clear the Senate, Harkin said, "He has over 50." Asked whether Perez had the 60 votes necessary to overcome a filibuster, Harkin, perhaps predicting a change in Senate rules, said, "Who cares?"

Reporter Manuel Quinones contributed.

Want to read more stories like this?

E&E is the leading source for comprehensive, daily coverage of environmental and energy politics and policy.

Click here to start a free trial to E&E -- the best way to track policy and markets.